State v. Hardy

257 S.E.2d 426 (1979)

STATE of North Carolina v. Ernest Raymond HARDY and Dennis Ray Hardy.

No. 80.

Supreme Court of North Carolina.

September 4, 1979.

*429 Atty. Gen. Rufus L. Edmisten and Associate Atty. Thomas H. Davis, Jr., Raleigh, for the State.

Ernest C. Richardson, III, New Bern, for Ernest Raymond Hardy, defendant.

Alfred D. Ward, Jr., New Bern, for Dennis Ray Hardy, defendant.

SHARP, Chief Justice.[1]

We first consider defendants' contentions:

*430 (1) That the offense of unlawfully resisting, delaying or obstructing a public officer in the discharge of a duty of his office, G.S. 14-223 (resisting), is not a lesser degree of the offense of assaulting a law-enforcement officer while he is discharging or attempting to discharge a duty of his office, G.S. 14-33(b)(4) (assaulting an officer);

(2) That, therefore, Judge Webb erred (a) when he charged the jurors in Cases No. 4706 and 4707 that if they were not satisfied beyond a reasonable doubt that Dennis Hardy was guilty of assaulting Officers King and Mylette, they would acquit him of the assault charge and consider whether he was guilty of resisting these officers; and (b) when he gave the same charge in Case No. 4714 in which Ernest was charged with having assaulted Officer Mylette;

(3) That when the jury acquitted defendants of the charges of assaulting Officers King and Mylette and convicted defendants of resisting, the court lacked authority to sentence them for that offense for which they had been neither charged nor convicted in the District Court.

For the reasons hereinafter stated, defendants' contentions with reference to these three cases must be sustained, and the decision of the Court of Appeals that the trial judge's error in submitting the offense of resisting as a lesser degree of the crime of assaulting an officer was favorable to defendant must be reversed.

As the Court of Appeals pointed out in State v. Kirby, 15 N.C.App. 480, 489, 190 S.E.2d 320, 326 (1972), "[T]he charge of resisting an officer * * * and the charge of assaulting a public officer while discharging or attempting to discharge a duty of his office are separate and distinct offenses. * * * No actual assault or force or violence is necessary to complete the offense described by G.S. 14-223."

An examination of the statutes verifies the correctness of the foregoing statement. G.S. 14-223 provides: "If any person shall willfully and unlawfully resist, delay or obstruct a public officer in discharging or attempting to discharge a duty of his office, he shall be guilty of a misdemeanor punishable by a fine not to exceed five hundred dollars ($500.00), imprisonment for not more than six months, or both."

G.S. 14-33(b)(4) provides in pertinent part that any person who "assaults a law-enforcement officer * * * while the officer is discharging or attempting to discharge a duty of his office" is guilty of a misdemeanor "punishable by a fine, imprisonment for not more than two years, or both such fine and imprisonment."

The legislative history of these two statutes and the fundamental difference in the interests they seek to protect precludes the notion that resisting an officer, a six-months misdemeanor, is a lesser degree of the offense of assaulting an officer, a two-year misdemeanor. The wording of G.S. 14-223, except with reference to punishment, has remained virtually unchanged since its original enactment in 1889. The location of G.S. 14-223 within N.C.Gen.Stats. Ch. 14, Art. 30, entitled "Obstructing Justice," evidences its purpose "to enforce orderly conduct in the important mission of preserving the peace, carrying out the judgments and orders of the court, and upholding the dignity of the law." State v. Leigh, 278 N.C. 243, 251, 179 S.E.2d 708, 713 (1971). G.S. 14-223 is concerned with acts threatening a public officer with injury only insofar as they interfere with the performance of his official duties. Violence or direct force is not necessarily an element of the crime of resisting an officer.

The misdemeanor of assault on a law enforcement officer, now codified as G.S. 14-33(b)(4) (1977 Cum.Supp.) within Chapter 14 under Article 8, Assaults, is a part of the latest rewrite of G.S. 14-33 (1943). These rewrites have created no new offenses as to assaults, but have only provided different punishments for various types of assaults. Common law definitions still govern assaults. State v. Roberts, 270 N.C. 655, 155 S.E.2d 303 (1967). The location and language of G.S. 14-33(b)(4) manifest *431 its purpose to protect the State's law enforcement officers from bodily injury and threats of violence rather than to preserve order and uphold the dignity of the law.

We hold, therefore that G.S. 14-223 and G.S. 14-33(b)(4) describe separate offenses and that the former is not a lesser degree of the latter. This holding, however, does not eliminate the possibility that the facts in a given case might constitute a violation of both statutes. In such a case the defendant could not be punished twice for the same conduct. It was so held in State v. Summrell, 282 N.C. 157, 192 S.E.2d 569 (1972). As we will later point out more specifically, defendants in this case are not threatened with double punishment for any of their conduct.

The Court of Appeals, while conceding that the trial court erred in submitting the issue of defendants' guilt of resisting arrest in Cases 4706, 4707 and 4714, nevertheless held that this error was harmless. As supporting this conclusion the Court relied upon State v. Thacker, 281 N.C. 447, 189 S.E.2d 145 (1972) and State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956). Such reliance is misplaced, for these decisions are not to be compared with the three cases we now consider.

In State v. Thacker, supra, defendant was tried upon an indictment charging him under G.S. 14-32(a) with a felonious assault upon one Pierce. Albeit all the evidence tended to show that the defendant had inflicted serious injuries upon Pierce by assaulting him with a knife having a six-inch blade, the trial judge inexplicably submitted to the jury the issue of defendant's guilt of an assault with a deadly weapon and an assault inflicting serious injury, misdemeanors condemned by G.S. 14-33. The jury convicted the defendant of an assault inflicting serious injury, a lesser degree of the felonious assault charged in the indictment. Although the verdict was illogical and inappropriate, it was upheld under the well settled principle that an indictment for any offense includes all lesser degrees of the same crime and, although all the evidence points to the commission of the gravest crime charged, the jury's verdict for an offense of a lesser degree will not be disturbed, since it is favorable to the defendant. G.S. 15-170, State v. Acor and State v. Moore, 281 N.C. 287, 188 S.E.2d 332 (1972); State v. Roy and State v. Slate, 233 N.C. 558, 64 S.E.2d 840 (1951).

Similarly, in State v. Stephens, supra, the defendant was indicted for first degree murder and convicted of manslaughter. All the evidence strongly pointed to the crime of murder; evidence of manslaughter was lacking. Notwithstanding, manslaughter being a lesser degree of murder, this Court was constrained to uphold the verdict.

In Thacker and Stephens the return of valid indictments gave the Superior Court jurisdiction over both the defendants and the offenses for which they were tried and convicted. A valid warrant or indictment encompassing the offense for which the defendant is convicted is essential to the jurisdiction of the court. State v. Crabtree, 286 N.C. 541, 212 S.E.2d 103 (1975). A defendant indicted for a criminal offense may be convicted of the crime charged or of any lesser degree of that offense provided the appropriate evidence is present. However, "[h]e may not, upon his trial under that indictment, be lawfully convicted of any other criminal offense, whatever the evidence introduced against him may be." State v. Overman, 269 N.C. 453, 464, 153 S.E.2d 44, 54 (1967).

In the instant case neither defendant was ever charged with the offense of resisting Officers King or Mylette. The warrants in Cases 4706, 4714 charged only assaults upon Officers King and Mylette, and it was their convictions of these assaults in the District Court which the defendants appealed. The Superior Court's jurisdiction was derivative, G.S. 7A-271(b), and was, therefore, restricted to the charges specified in the warrants. Consequently, Judge Webb lacked jurisdiction under the assault warrants to enter judgment upon verdicts convicting defendants of resisting arrest by Officers King and Mylette. The judgment in Cases 4706, 4707, and 4714 *432 must be arrested. State v. Guffey, 283 N.C. 94, 194 S.E.2d 827 (1973); State v. Bryant, 280 N.C. 407, 185 S.E.2d 854 (1972).

It does not follow from what we have just said, however, that the judgments must be arrested in Cases 4909 and 4712 in which defendants were respectively charged and convicted of resisting Officer Hall after the cases were consolidated for trial with Nos. 4708 and 4715. On the contrary, we affirm the decision of the Court of Appeals that, although the judge erred (1) in not requiring the State to elect at the close of the evidence between the charges of resisting and assaulting Officer Hall, and (2) in submitting the issue of defendants' guilt of resisting as a lesser degree of the offense of assaulting Officer Hall, these errors were harmless.

Albeit the assaults charged in Cases 4708 and 4715 were the means by which Officer Hall was resisted, the double jeopardy rationale which prevailed in State v. Summrell, supra, has no application here. Unlike defendant Summrell, who was convicted and sentenced for both assaulting and resisting an officer "when the assault was the means by which the officer was resisted," the defendants Hardy were not twice convicted for the same conduct.

In submitting the charges that defendant assaulted and resisted Officer Hall in the context of greater and lesser included offenses, the judge clearly instructed the jury that they could convict defendants of only one of these charges not both. In other words, he allowed the jury to make the election the State should have made. This error was harmless to the defendants beyond any reasonable doubt. Although overwhelming evidence tended to show that each defendant had made a vicious attack upon Officer Hall, "by an act of grace," the jury convicted them of the less serious misdemeanor of resisting. "[S]ince [the verdicts were] favorable to the accused, it is settled law they will not be disturbed." State v. Stephens, supra, 244 N.C. at 384, 93 S.E.2d at 434.

We reemphasize the fact that the two verdicts of guilty of resisting are supported by valid warrants and that the Superior Court acquired jurisdiction of the four cases involving Officer Hall (Nos. 4708, 4709, 4712 and 4715) when defendants appealed all their convictions in the District Court. Thus, the Court of Appeals did not err in affirming the judgments in Cases 4712 and 4709 (resisting Hall).

Defendants' remaining assignments of error relate to specified portions of the judge's instructions to the jury relating to the charges of communicating threats and resisting arrest and to defendants' right to self-defense. As to each of these assignments, we borrow the language which the Court of Appeals used with reference to the charge on communicating threats: "While we would not adopt the charge as a model, we think the jury was fully apprised of the law as it applied to the facts and could not have been misled." The assignments to the charge are overruled.

Except as specified herein, the decision of the Court of Appeals is affirmed.

The result as to Ernest Raymond Hardy:

No. 76CR4711 Threatening Officer Hall No error.

No. 76CR4713 Threatening Officer Mylette No error.

No. 76CR4714 Assaulting Officer Mylette, defendant acquitted of assaulting and convicted of resisting Judgment arrested.

No. 76CR4712 Resisting Officer Hall No error.

No. 76CR4715 Assaulting Officer Hall, consolidated with No. 76CR4712, verdict of not guilty.

The result as to Dennis Ray Hardy:

No. 76CR4704 Threatening Officer King No error.

No. 76CR4710 Threatening Officer Hall No error.

No. 76CR4709 Resisting Officer HallNo error.

*433 No. 76CR4708 Assaulting Officer Hall, consolidated with No. 76CR4709 Verdict of not guilty.

No. 76CR4706 Assaulting Officer King, defendant acquitted of assaulting and convicted of resisting Judgment arrested.

No. 76CR4707 Assaulting Officer Mylette, defendant acquitted of assaulting and convicted of resisting Judgment arrested.

The judgment of the Court of Appeals is

Affirmed in part; Reversed in part.

BROCK, J., did not participate in the decision in this case.

[1] This opinion was written in accordance with the Court's decision made prior to Chief Justice Sharp's retirement and was adopted by the Court and ordered filed after she retired.